JOHN D. HAMILTON, JR and ANDREW H. COHN, as Trustees of OYSTER POND EP TRUST; RICHARD L. FRIEDMAN, ALLEN W. NORTON, and JUDITH NORTON, individually and with MELISSA NORTON, as Trustees of QUIET OAKS REALTY TRUST; ALBERT WHITE, TONI WHITE HANOVER, and SHAUNA WHITE SMITH, as Trustees of the QUAMPACKY TRUST; MARK B. NORTON; SHAUNA WHITE SMITH; DEBRA WHITE SCOTT; LISA WHITE; and TONI WHITE HANOVER v. MICHAEL D. MYEROW, as Trustee of BOTAR REALTY TRUST, RABOR REALTY TRUST, AND TAROB REALTY TRUST; PAMELA KOHLBERG, as Trustee of the JOB'S NECK TRUST; ANDREW KOHLBERG, as Trustee of the HIGH ROAD REALTY TRUST; JEFFREY FLYNN, RICHARD KEELER, and PATRICIA POST, as Trustees of the POHOGONOT TRUST; and SHORT POINT HOLDINGS, LLC

Introduction

The Plaintiffs commenced this action on October 29, 2004, seeking to quiet title to a parcel of real property known as South Beach Ocean Front in Edgartown ("Beach") and seeking a declaratory judgment, pursuant to G. L. c. 231A, confirming their rights to use certain rights of way to that Beach, which ways lie over land owned, of record, by the Defendants. In essence, this case involves the Plaintiffs' claims to record ownership interests in the Beach and in ways to the Beach, or, alternatively, claims to have acquired prescriptive easements to use the Beach and to use the ways known as Wheldon's Path, Pohogonot Road, and the Road to Short Point ("Beach Paths"). There have already been a substantial number of motions filed and Orders issued in this case. The sole matter before the Court, at this point, is whether the Plaintiffs have acquired a prescriptive easement over the aforementioned ways, and to use the Beach. For the reasons more fully set forth below, I find and rule that the Plaintiffs have not met their burden of establishing that they have acquired any prescriptive easements over the subject ways or the Beach because their use was neither adverse, nor open and notorious, nor did their activities satisfy the minimum required period of twenty-years. Rather, the relevant use was permissive. And, as already set forth in previous Orders of the Court, any record ownership rights which the Plaintiffs may have previously held in the Beach, essentially, no longer exist because the Beach, as it was located as late as 1938, is now completely submerged under the Atlantic Ocean.

Procedural History

The Plaintiffs in this case are John D. Hamilton, Jr., and Andrew H. Cohn, as Trustees of Oyster Pond EP Trust; Richard L. Friedman, Allen W. Norton, and Judith Norton, individually and with Melissa Norton Vincent, as Trustees of the Quiet Oaks Realty Trust; and Albert White, Toni White Hanover, and Shauna White Smith, as Trustees of the Quampacky Trust. The Defendants are Michael D. Myerow, as Trustee of Botar Realty Trust, Rabor Realty Trust, and Tarob Realty Trust ("Myerow Defendants"); Pamela Kohlberg, as Trustee of the Job's Neck Trust; Andrew Kohlberg, as Trustee of the High Road Realty Trust ("Kohlberg Defendants"); Jeffrey Flynn, Richard Keeler, and Patricia Post, as Trustees of the Pohogonot Trust ("Pohogonot Defendants"); and Short Point Holdings, LLC. These originally named Defendants answered the Complaint on December 16, 2004.

This case has a substantial procedural history, which is as follows. On application by the Plaintiffs, the Court granted a Preliminary Injunction on November 24, 2004, enjoining Defendants, during pendency of this litigation, from blocking or otherwise interfering with Plaintiffs' rights to use their alleged rights of way over the Defendants' property. On April 6, 2005, the Pohogonot Defendants filed an Answer and Counterclaims, joining as parties a number of Additional Defendants in Counterclaim. [Note 1]

On May 23, 2006, Plaintiffs, with leave of court, filed their Second Amended Complaint, [Note 2] naming five of the Additional Defendants in Counterclaim as Plaintiffs: Mark B. Norton, Shauna White Smith, Debra White Scott, Lisa White and Toni White Hanover. [Note 3] On assented-to motion of the parties, the Court issued an Order on September 19, 2008, dismissing all claims by and against all of the remaining Additional Defendants in Counterclaim except for Lage, Inc., as general partner of the Jokase Limited Partnership ("Lage"), and Paul E. Konig and Joanne V. Konig, as Trustees of the Paul E. Konig Revokable Living Trust and the Joanne V. Konig Revocable Trust ("Konigs"). On October 9, 2009, the Court allowed a motion of the Defendants to dismiss the claims of the Konigs with prejudice.

On September 1, 2006, Plaintiffs filed a Motion for Partial Summary Judgment on Count I of the First Amended Complaint. The Pohogonot Defendants opposed the motion on October 26, 2006, and filed a Cross Motion for Partial Summary Judgment. On October 30, 2006, the Kohlberg Defendants filed a Motion for Partial Summary Judgment Pertaining to the long Plaintiffs' Alleged Ownership of an Interest in the current 8,200 foot long Beach. On November 2, 2006, the Myerow Defendants also filed a Motion for Partial Summary Judgment Pertaining to the Issue of Beach Rights. Following a hearing, the Court issued a Decision on April 1, 2009, denying the Plaintiffs' motion and allowing the three motions of the Defendants, ruling that the Plaintiffs have no deeded interest in the subject Beach. [Note 4]

On October 30, 2006, the Kohlberg Defendants and Short Point Holdings, LLC, filed a Motion for Partial Summary Judgment Pertaining to Alleged Easements to Use the Road to Short Point. Following a hearing, the Court issued a Decision on April 1, 2009, allowing in part the Defendants' motion, ruling that Plaintiffs do not hold any easement, prescriptive, express or implied, over the Road to Short Point.

On January 22, 2008, the Pohogonot Defendants filed a Motion for Partial Summary Judgment concerning claimed rights to and over Paqua - which is a portion of the Pohogonot Defendants' property. Following a hearing, the Court issued a Decision on October 13, 2009, allowing the Defendants' motion, ruling that the Plaintiffs do not hold any easement, express or implied, prescriptive or otherwise, over Paqua.

On December 2, 2009, the Court took a view of the property in the presence of several of the attorneys and parties. Trial was held from December 7, 2009 through December 15, 2009, December 17 and 18, 2009, and March 1, 2010 through March 4, 2010 - a total of thirteen days. Stenographers Pamela St. Armand, Wendy Thomas, and Mary Tarallo Buduo were sworn to record and report the testimony. Two hundred fifty-eight (258) exhibits were admitted into evidence, as well as numerous chalks.

Findings of Fact

After reviewing the record before the court, including the witnesses' testimony, the exhibits introduced at trial, my observations at the site visit, and the post-trial memoranda submitted by the parties, I find the following facts:

1. South Beach Ocean Front in Edgartown is a beach parcel consisting of approximately 1.7 miles of shoreline on the southwestern shore of Edgartown in Martha's Vineyard located between Job's Neck Point in the East and the Oyster-Watcha Line in the West ("Beach").

2. The southern shoreline of Martha's Vineyard is eroding. From 1846 to 2005, the shoreline eroded at a nearly constant rate. On average, the shoreline eroded five and two tenths feet (5.2') per year near Watcha Pond and seven and two tenths feet (7.2') per year near Edgartown Great Pond (East of the Beach). During this time, the shoreline eroded inland approximately eight hundred and fifty one feet (851') near Watcha Pond.

3. In 1846, the Beach was abutted to the North by three ponds: Oyster Pond, north of the western border of the Beach; Paqua Pond in the west-center; and Job's Neck Pond, north of the eastern border of the Beach.

4. As a result of the eroding shoreline of the Beach, the shorelines of these ponds have migrated northward and have been reshaped. Job's Neck Pond has been fractured into three ponds: (1) Job's Neck Pond; (2) Pohogonot Cove, once connected to the pond, has separated and stands alone abutting the Beach on its northern border, east of the center; and (3) The eastern cove of Job's Neck Pond has similarly separated - now called Little Job's Neck Pond - and stands alone north of the eastern border of the Beach. Isaac's Neck lies between what was formerly Pohogonot Cove on the west and Job's Neck Pond on the east. Short Point lies between Job's Neck Pond on the west and Little Job's Neck Pond on the east. See attached Decision Sketch, showing the subject land and the surrounding area.

5. As a result of erosion, the area on which the Beach was located in 1846 is now submerged in the Atlantic Ocean. In fact, the area on which the Beach was located as late as 1938 is, likewise, submerged in the Atlantic Ocean.

6. Plaintiffs' alleged interest in the Beach derives from a deed dated May 9, 1712 recorded with Dukes County Registry of Deeds in Book 6, Page 283, in which John Butler conveyed to Captain Samuel Smith a parcel of land encompassing, what is today, the Beach. [Note 5]

7. By 1841, Wilmot Smith owned a 50% undivided interest in the Captain Smith land, and the other 50% undivided interest was owned by the eight heirs of Samuel Smith. [Note 6]

8. By deed dated September 21, 1841, recorded in Book 28, Page 229, Wilmot Smith conveyed to four of the eight heirs [Note 7] his 50% undivided interest in an upland parcel known as Paqua and the Beach parcel ("1841 Smith Deed"). [Note 8]

9. The 1841 Smith Deed describes Paqua and the Beach parcel separately.

10. The 1841 Smith Deed describes the Beach parcel as "bounded on the North by the arable land of Paqua and Pohogonot and by the several ponds in the vicinity; on the South by the Ocean, and extending to Job's Neck Point on the East, and to the Oyster pond opening on the West...."

11. The 1841 Smith Deed describes Paqua as bounded "on the South by the Beach...."

12. By deed dated September 25, 1841, recorded in Book 28, Page 232, the heirs divided and conveyed to Wilmot Smith, their one-half undivided interest in an upland parcel known as Pohogonot ("1841 Pohogonot Deed").

13. The 1841 Pohogonot Deed describes Pohogonot as bounded on the South from Paqua Pond "easterly by [the fence at the edge of the Beach] or Beach to Job's Neck Pond...."

14. Plaintiffs derive their alleged interest in the Beach from Josiah H. Smith, one of the eight heirs. [Note 9]

15. A warranty deed in the plaintiffs' title, dated October 31, 1875, recorded in Book 59, Page 245, describes the conveyance as "all our right and interest in the beach extending from Job's Neck Point to Watcha Line, so-called, however the above may be located. . ." ("1875 Alden Deed").

16. The plaintiffs' title may then be traced to the 11/56th interest held by Allen Norton in November 1888. By deed dated November 7, 1888, recorded in Book 79, Page 483, Allen Norton divided and conveyed to Edmund G. Beetle, his undivided 11/56th interest in Paqua but retained his undivided, 11/56th interest in the Beach parcel ("1888 Norton Deed").

17. The 1888 Norton Deed describes the conveyance as "all my right, title, and interest in said Paqua", except to the beach, extending from Job's Neck Point to Watcha Line so called."

18. On or about 1950, Winthrop B. Norton and George D. Flynn, Jr. commissioned Attorney Harry Perlstein to conduct a title examination to determine ownership interests in the Beach. On December 8, 1950, Attorney Perlstein made his report in a letter addressed to Mr. Norton and Mr. Flynn entitled "Letter of Opinion, Discussion of Deed, Allen Norton to Edmund G. Beetle, Book 79, Page 483, and Examiner's Narrative" ("Perlstein Letter").

19. Upon his death on January 22, 1981, Winthrop B. Norton - who held an 11/56th undivided interest in the Beach parcel - attached to and incorporated by reference in his will, the Perlstein Letter, which was subsequently recorded with the will at the Dukes County Probate Court.

20. More contemporary deeds in the chain of title describe the Beach parcel as "Ocean Beach Land at Oyster Pond, consisting of 9,300 +/- feet ocean frontage from Jobe's [sic] Neck Point to the West Tisbury Town Line."

***

As can be seen from the case docket sheet, which is more than fifty pages in length, many of the arguments raised by various parties in this case have already been determined by the Court in the several Orders referred to above. The issue currently before the Court is the claim of the various Plaintiffs to have acquired prescriptive easements to use the Beach and the roads leading to it - namely, Wheldon's Path, the Road to Short's Point, and Pohogonot Road. To adjudicate this claim requires looking at the history of this section of Edgartown, the owners of the land, and the activities of people who lived there. Only after doing so can the Court determine whether the members of one family, the Nortons, have established rights under the doctrines of prescription and adverse possession to use the Beach and the roads and ways providing access to it, record title to which has historically been held by members of the Flynn family.

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Standard for Prescriptive Easements

To establish a claim for a prescriptive easement, the claimant must establish each element by clear proof that "they or their predecessors have used property in which they claim a prescriptive easement in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years." Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008)(quoting Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 43-44 (2007)); see Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Brown v. Sneider, 9 Mass. App. Ct. 329 , 331 (1980); G.L. c. 187, § 2. It is not required that the use be exclusive. Labounty v. Vickers, 352 Mass. 337 , 349 (1967). If the use of the easement has been unexplained for twenty years, it is presumed that the use is adverse and is "sufficient to establish title by prescription...unless controlled or explained." Houghton, 71 Mass. App. Ct. at 836. The responsibility then rests on the record owner to show that the use of the easement was a result of a "license, indulgence, or special contract inconsistent with a claim of right by the other party." White v. Chapin, 94 Mass. 516 , 518 (1866). Permission by the owner, whether express or implied, will prevent a claim for a prescriptive easement; however, acquiescence is not sufficient to prevent acquisition of prescriptive rights or, indeed, a full title by adverse possession. Id.; Spencer v. Rabidou, 340 Mass. 91 , 93 (1959), stands for the principle that permission is more than acquiescence.

Particularly where the easement asserted by the claimant is for passage, as it is here, the easement and the use giving rise to it must be "substantially confined to a regular or specific path or route..." Boothroyd, 68 Mass. App. Ct. at 45; Stone v. Perkins, 59 Mass. App. Ct. 265 , 267-268 (2003). Where, as here, the land over which the easement is claimed is large, unenclosed, and in its natural state, the party claiming the easement faces an increased burden to show that the use was sufficiently notorious to permit an inference of knowledge and implied acquiescence on the part of the owner. See Gadreault v. Hillman, 317 Mass. 656 , 663 (1945).

Discussion

At one time, the tract of land involved in this litigation consisted of approximately three thousand acres. It included two ponds, Oyster Pond and Job's Neck Pond, and was bounded on the south by the Atlantic Ocean. There were a few homes and camps on the parcel but, for the most part, it was vast, wooded and unimproved. Not surprisingly, this large parcel was traversed by various paths and ways, including Wheldon's Path. As the Court noted on the site visit, even today, many of the paths are not visible to anyone who is not standing on, or traveling near to, those paths. The same can be said of the 9,300 foot long Beach. It is so long, that it would be quite easy to stand or spread blankets at one end of the Beach and not be seen by others standing or enjoying the ocean at or near the other end of the same Beach.

Another matter, which must be remembered, is that there is constant erosion taking place on Martha's Vineyard. The Beach at issue in the present case is no exception: scientific evidence and testimony at trial established that the Beach has been eroding at a rate of five or more feet per year. The Beach, as it was located in 1938, is now completely submerged under the Atlantic Ocean. As an example of the impact of that erosion, Oyster Pond, which at one time was saline and an inlet of the ocean, is now cut-off from the Atlantic Ocean. Therefore, it has become necessary to "breach the beach" once or twice annually to allow salt water to enter and leave Oyster pond during several tides, thus allowing salt-water marine life such as crabs and oysters to continue to live therein.

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Historically, two families have been owners of the relevant land - the Nortons and the Flynns. Over time, the properties were eventually put into various entities, which are essentially the parties to this case. For ease of reference, and also for the claims and actions relevant to this matter, I shall continue to refer to those two families. The Nortons and the Flynns were friends and neighbors for many years. As noted above, in the early 1950's, Winthrop B. Norton ("Sonny") and George D. Flynn, Jr. ("Uncle George") were the patriarchs of their respective families. At trial, a good amount of evidence was introduced to establish that the two friends were not particularly concerned as to the boundary lines between the properties. They shared the properties and allowed each other to make use of the other's. In certain instances, one sold land to the other. On one occasion - a conveyance by Sonny to Uncle George of the parcel known as "Short Point" - the parties agreed that, during the lives of Allen and Sonny, Sonny, Allen Norton, and their families would have permission to use Short Point. [Note 10]

Over time, the two families increased in size. The two patriarchs passed on, but their children, grandchildren, nieces, and nephews began families of their own. This, of course, caused the number of persons using the roads and Beach to increase. Even then, however, and especially in the 1960's and 1970's, the area was so immense that it was possible for one family to make use of a portion thereof without disturbing, or even being seen by, members of the other family. In addition, at that time, everyone was cognizant of both their own privacy and that of others with respect to use of the land. This was especially true in the use of the Beach; the Nortons tended to stay near Little Job's Neck Pond and Job's Neck Pond, keeping their distance from the Flynn houses and the barrier beach at Oyster Pond, where the Flynns usually "hung out." If members of the Norton family wanted to use the portion of the Beach near Oyster Pond, as they did on several occasions, they would contact Uncle George and request permission. It was seldom if ever denied.

In the late 1970's, shortly before his death, Sonny began to prepare to make a will. In that will, he made references to various rights of way which he claimed over Flynn property, including a path running from White Gate and East Gate in the Flynn property to an area called Paqua. This path, which runs along the easterly shore of Wheldon's Cove and Oyster Pond, is not the way or ways which the Nortons now claim over Wheldens Path and Pohogonot Road. Sonny never discussed these claims with Uncle George, nor did Uncle George make any conveyance during his lifetime of any interest in the Beach or in roads or ways leading to it.

Sonny Norton died in 1981, and his property was divided in his will among several heirs. Apparently, because the estate was being deluged by high inheritance and estate tax obligations, the Norton family concluded that it was necessary to sell some of their properties. They began to sell lots along with "prescriptive rights" which, they claimed, allowed them to use and cross over the Flynn property. These deeds also included fractional ownership interests in the Beach itself. Advertisements in the Vineyard Gazette, placed by a local realtor, spelled out what the Nortons were purporting to sell, mentioning Beach rights and the claimed fractional interests in the Beach.

Richard Friedman, a prominent businessman in the field of real estate, became aware of the Norton properties and eventually purchased land known as the Farm House property from the estate in 1983. [Note 11] The deed to Friedman, which purported to include the conveyance of Beach rights and rights of way over the Flynn property, was the first time that Beach rights and rights of way were conveyed to a person outside of the Norton family. At the closing, Mr. Friedman requested and received from members of the Norton family an affidavit concerning their purported historic use of certain of the ways.

After his purchase of the Farm House parcel, Mr. Friedman, in spite of being asked by Allen Norton not to do so, began to ride on horseback over large portions of the Flynn property. When the Flynns complained, a "ceasefire" was put into effect in 1987 while attorneys for both sides studied the situation and attempted to arrive at a neighborly accommodation. It was agreed that Friedman and members of the Norton family could continue to use the ways in question while the negotiations continued. In 1999, negotiations not having been successful, the Flynns executed, served, posted, and recorded a Notice to Prevent Easement pursuant to G. L. c. 187, § 4. [Note 12] This effectively cut off any possible claim of a prescriptive easement by Friedman because any purported "adverse or hostile" use of the ways by him began in the early 1980's at the earliest, and was terminated by the "posting" in 1999 - notably, a period of less than the required minimum of twenty years.

At trial, considerable evidence and testimony was introduced by the Nortons, Mr. Friedman, and various guests and tenants that they had used the Beach and various ways over a period of time. Any such use which began in the early 1980's was "cut-off" by the G. L. c. 187, § 4 posting. [Note 13] Accordingly, I need not delve into it much further except to point out that the historical relationship between the Norton and Flynn families, going back for many years, requires me to conclude that any use of the parcel was permissive, rather than adverse. In addition, there were certain unusual circumstances that precluded the clock from running on any possible claim of prescription. For example, in a previous order, this Court ruled that any use by the Nortons of the Road to Short Point was not adverse because the Nortons and Flynns had agreed at the time of the sale of Short Point from Allen Norton to a Flynn family member that the Nortons would still be able to use the property.

As stated earlier, the Norton family, for a long time, generally stayed away from Oyster Pond Beach because the Flynns tended to congregate there. Later, for whatever reason, and especially after the Friedman purchase of property, Plaintiffs began to go more often to the Oyster Pond area. As this was occurring, there were several occasions when members of the Flynn family, and particularly Brad Keeler, questioned the Norton's and Friedman's right to be there, and asked them to leave. Mr. Friedman even complained to the police on at least one occasion when he was "accosted" by a member of the Flynn family while horseback riding in the disputed area.

Conclusion

All the above leads me to the conclusion that the Flynns allowed and permitted the Nortons and their friends to use the Beach and ways at issue in this case. This permission precluded the uses from becoming rights. Simply put, the Plaintiffs have not met their burden of proof, and thus have not acquired a prescriptive easement to use the Beach, or to use the subject ways to the Beach, or over any of the Flynn property.

Judgment to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: April 20, 2011